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Thursday, July 18, 2013

GUEST BLOG: Squeeze through the hoop and then clear the high hurdle: Title VII – a new X Games course?

By Prof. Michael Foreman Director, Civil Rights Appellate Clinic, Dickinson School of Law, Penn State University

Prof. Michael Foreman

In two cases by the same 5-4 majority, the Supreme Court made it harder for employees to hold employers liable for workplace harassment and at the same time heightened the standard for proving unlawful retaliation under the same law – Title VII of the Civil Rights Act of 1964. Like an X Games obstacle course, the Court has now imposed two additional hurdles to the already significant challenges employees face when exercising their right to work in an environment free of discrimination.

In University of Texas Southwestern Medical Center v. Nassar, the majority held that the employee must prove “but for” causation to establish a violation of the statute’s anti-retaliation provisions, even though the same statute provides that the law is violated if one of the class-based designations covered in the law is a “motivating factor” in the adverse action. In other words, even if unlawful retaliation is a “motivating factor” in the employment decision, the law is not violated unless the employee can show that “but for” the unlawful discrimination, they would not have suffered the adverse treatment.

In Vance v. Ball State University, the majority adopted a very narrow definition of who constitutes a “supervisor” under Title VII – limiting it to that sliver of employees who can take a tangible employment action, which is defined as “a significant change in employment status, such as hiring, firing, failure to promote, reassignment with significantly different responsibilities, or a decision causing a significant change of benefits.” In other words, the employee must be able to really hurt you – not just make your work life miserable through the authority given them by the employer – before they will be viewed as a supervisor for Title VII purposes.

In a country where discrimination has been renounced by the legislature and courts, you would hope that Supreme Court decisions would seek to advance the goal of ending workplace discrimination. But to the contrary, in the words of Justice Ginsburg, the majority’s opinions have a “decidedly employer-friendly” tilt and are not “guided … by the aims of the legislators who formulated and amended Title VII” but rather, in the case of Nassar, “by zeal to reduce the number of retaliation claims filed against employers.”

The majority’s analysis in Vance seems to rest on several general justifications: One, their definition of “supervisor” is easier to apply than the one proposed by the employee; two, they don’t want to add to jury confusion; and three, they don’t want to expose employers to frivolous retaliation claims. On the surface all good justifications, but when examined in the face of Title VII’s Congressional purpose and workplace reality, they provide little foundation for these holdings.

The definition of “supervisor” adopted by the majority was one that no party arguing before them asked the Court to adopt; even Ball State recognized it did not reflect what actually occurs in the workplace. Rather than adopt the rule urged by both parties and the United States government and provide a meaningful definition of “supervisor,” the majority kicked the litigation can down the road into the land of negligence. In an effort to soften the blow to employees, Justice Alito cautioned that under this negligence standard “the jury should be instructed that the nature and degree of authority wielded by the harasser is an important factor to be considered in determining whether the employer was negligent.” Justice Alito later explained that “[e]vidence that an employer did not monitor the workplace, failed to respond to complaints, failed to provide a system for registering complaints, or effectively discouraged complaints from being filed would be relevant” to a negligence determination. All are true statements of negligence law, but it is hard to see how applying this fact-intensive inquiry to determine employer liability in any way provides a more easily applied standard or will reduce litigation in the long run.

Some will say I am just reacting because the Court did not adopt the broader definition of “supervisor” we urged in an amicus brief filed on behalf of civil rights organizations, and which was discussed in my earlier blog. They would be right. That standard has proven to be workable, was adopted by the Equal Employment Opportunity Commission and urged by the United States Government. It also furthers Congress’s goal of eliminating discrimination. Most importantly, it encourages employers to adopt policies to prevent workplace harassment and rewards them when they do by providing them the affirmative defense the Supreme Court gave employers in the Faragher v. City of Boca Raton and Burlington Northern v. Ellerth.

In Nassar, the majority applied a hyper-technical statutory analysis. The majority reasoned that, while Congress did not wish to condone any type of class-based discrimination because the law specifies that consideration of the protected class cannot be a “motivating factor” in an adverse employment decision, this same standard did not apply to retaliation claims brought under the same law. In the majority’s view, some amount of retaliation is tolerable under the law. So even with clear, expressed retaliatory motive, the employee will be unable to win his or her claim if the employer has another reason for the adverse employment action. This no doubt will chill any employee from challenging workplace retaliation.

This is exactly what the dissent fears, noting that “fear of retaliation is the leading reason why people stay silent.” Further, the dissent fears that this view of causation as applied to retaliation will ultimately apply to proving discrimination itself, as the two have “travelled together.” The Majority decision is so at odds with the Court’s history of decisions, “unbroken until today, teaching that retaliation for complaining about discrimination based on protected characteristics is a form of discrimination based on those characteristics,” that Justice Ginsburg urged Congress to intervene and correct this erroneous view of Title VII’s protections.

The majority stresses the strained resources of the judiciary and a desire to fight frivolous litigation. However, the EEOC standard rejected in Nassar provided that claims should go forward only if there was credible evidence that retaliation was a motive for the action against the employee. Furthermore, judges will now be required to charge juries on two separate causation standards for intentional discrimination under the same statute, and the jurors will be expected to understand these legal nuances.

What do these cases add up to? The majority opinions in these cases no doubt provide additional insulation for employers, but are conspicuously silent on how these decisions will further the legislative intent of Title VII to end workplace discrimination. For attorneys, it is a new checklist of conditions that must be met before they can prove discrimination, and there will be renewed efforts to make Title VII a negligence type analysis rather than an effort to determine that a federal law has been violated. But for workers, the X Games type obstacle course now in place may simply be too daunting for many to attempt – sadly leading to less justice in the workplace, not more.

Professor Michael Foreman directs Penn State's Civil Rights Appellate Clinic, which has served as counsel on numerous cases in United States Supreme Court and federal appellate counts. He argued Coleman v. Maryland Court of Appeals to the Supreme Court in 2012. Professor Foreman is frequently called upon to testify before Congress and the EEOC on the impact of the Supreme Court decisions affecting civil rights and employment issues. Prior to joining Penn State he was deputy director of Legal Programs for the Lawyers' Committee for Civil Rights Under Law. Professor Foreman was acting deputy general counsel for the U.S. Commission on Civil Rights, where he served as the lead attorney for the commission's investigation of the voting irregularities in the 2000 presidential election. A recipient of the Carnegie Medal for Outstanding Heroism, Professor Foreman has been honored by Shippensburg University with the Jesse S. Heiges Distinguished Alumnus Award. He was also selected by Harvard Law School to as a Wasserstein Fellow, which recognizes dedicated service in the public interest.